Sarma Agrico Engineering Stores vs Bellala Sunanda
2021 Latest Caselaw 3777 AP

                                                                      MVR,J
                                                           S.A.No.143 of 2020
                                    1

              HON'BLE SRI JUSTICE M. VENKATA RAMANA

                   SECOND APPEAL No.143 of 2020
JUDGMENT:

Since both the learned counsel Sri S.Sridhar, for the appellant-

tenant and Sri M.V.Suresh, for the respondents-landlords addressed

arguments on merits and consented for disposal of this second appeal at

the stage of admission, it is now being disposed of by this judgment.

2. The respondents are the owners of the demised premises. It is

described in the plaint schedule as under:

"East Godavari District, Rajahmundry Municipal Corporation,

Ullithota Veedhi terraced building bearing Dr.No.7-2-30 ground floor

eastern side shop room and 3 small rooms bounded by:

East : Property of Chebolu Nageswara Rao

South : Vullithota Veedhi

West : Shop room let out to Nandi Pipes Agencies

North : Property of Mitta Parvathamma"

3. It consists of a shop room in the ground floor on the eastern side,

with three small rooms in rear portion. The tenancy of the appellant in

respect of the shop room commenced in the year 1997 at Rs.3,000/- per

month. The tenancy of the three small rooms commenced in the year

2012 @ Rs.600/- for each room. It is not the complaint of the landlords

that the tenant committed any default in payment of rent. On the date

of institution of the suit, the rent being paid was Rs.5,800/- per month

for the shop room and the same rent continued for the three small

rooms.

MVR,J S.A.No.143 of 2020

4. Contending that the respondents did not have any other building

at Rajahmundry, where the demised premises is located except this

building, that they have been demanding the appellant to vacate this

premises, handing over peaceful possession to enable them to construct

a new building that suits for their purpose, the respondents caused

a quit notice dated 06.03.2013 demanding the appellant to vacate the

premises. The respondents claimed that the appellant had received this

notice on 09.03.2013, did not choose to reply nor comply with their

demand by vacating this premises.

5. On such basis, the respondents laid the suit for eviction of the

appellant and also for damages for use and occupation from 01.04.2013.

6. The defence of the appellant is that he was earlier a tenant of

the building bearing Door Number 8-24-2, which he vacated in December

1997 to enable its owner to raise a new structure by demolishing it. He

further contended that having regard to nature of the plaint schedule

property consisting of a shop room on the eastern side and three small

rooms on the rear side with open space in between, he took eastern side

shop room on lease initially from Smt.Pedamallu Bhagyavathi on a

monthly rent of Rs.3,000/- with effect from May 1997. He also alleged

about payment of advance, which is not an issue in this second appeal.

However, he contended referring to the occupation of three rooms by

him with effect from 01.04.2012 on a monthly rent of Rs.600/- and that

these two tenancies are separate for which rents are being paid

separately.

7. Thus, the appellant sought to repel the contention of the

respondents that there is a single tenancy in respect of the shop room as MVR,J S.A.No.143 of 2020

well as the three small rooms denying the alleged termination of

tenancy, by means of the quit notice. Questioning its legality, he

asserted that he continued being the tenant of this premises. He

further claimed that the tenancy of these small rooms on the rear side is

covered by the Rent Control Act and as such, the suit could not have

been filed in such a manner. He also stated that he got issued a reply

on 15.04.2013 to the notices issued on behalf of the respondents dated

06.03.2013 and 05.04.2013.

8. Basing on the pleadings of the parties, learned trial Judge settled

the following issues:

1. Whether lease of eastern side shop room and three small rear rooms is composite or separate?

2. Whether the quit notice issued by the plaintiff terminated the lease according to law?

3. Whether plaintiffs are entitled to evict the defendant from entire plaint schedule property or from eastern side shop room only?

4. Whether plaintiff is entitled to recover damages, if so to which extent of the plaint schedule property and at what rate?

5. To what relief?

9. The parties went to trial. The third respondent examined himself

as P.W.1 and the respondents relied on Ex.A1 to Ex.A4 in support of

their contention. The appellant examined himself as D.W.1 and relied

on Ex.B1 to Ex.B5.

10. On the material and the evidence, learned trial Judge rejected

the defence of the appellant and directed his eviction from the demised

premises. Appeal preferred by the appellant also suffered the same

fate, that was dismissed confirming the decree and judgment of the

trial Court. In these circumstances, the appellant preferred this second

appeal.

MVR,J S.A.No.143 of 2020

11. Following are the substantial questions of law raised on behalf of

the appellant in this second appeal.

"1. Whether the courts below are right in applying the law in relation to a tenancy under special enactment to the tenancy under general law for passing a decree of eviction when tenancy under special enactment is distinct from tenancy under general law in all aspects including the cause of action for evicting the tenant?

2. Whether disregard or non consideration of relevant evidence of P.W.1 with respect to the intention of parties and the terms of leases by both the trial court and lower appellate court is justified and sufficient to hold the leases as a composite lease?

3. Whether the lower appellate court is right or justified in non formulating a point for consideration/determination as to the applicability of Ch.Manikya Sarma case reported as 2009(2) ALT 424 in passing eviction order against the appellant by the trial Court?

4. Whether the lower appellate court is justified in confirming the trial court judgment without recording its own conclusions with respect to the points of fact being the last fact finding court and also on the point of law?

5. Whether the judgment passed by the lower appellate court without discussing the facts of Bulchand's case to the present case stands to scrutiny in view of Constitutional Bench Judgment delivered in the case of Padmasundara Rao & Others reported as AIR 2002 SC 1334 with respect to placing reliance on judgments of one case in another case?"

MVR,J S.A.No.143 of 2020

12. The predominant question to consider in this matter now is

whether tenancy in relation to the shop room as well as the three small

rooms of the demised premises constituted a composite tenancy and if

both the Courts below are right in directing eviction of the appellant

therefrom.

13. The question of efficacy or validity of the quit notice issued under

Ex.A1 on behalf of the respondents, also relates to the nature of this

tenancy.

14. Both the courts below basing on CH.MANIKYA SARMA v.

RAJENDRA SINGH BHATIA1 held that the suit as filed for eviction of the

appellant is proper even though the tenancy in respect of the shop room

as well as the three small rooms remain different.

15. This ruling as rightly contended by Sri Sridhar, learned counsel for

the appellant is with reference to application of Section 10 of

A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960. The eviction

of a tenant under this special Act is subject to proof of the grounds as

are enumerated in Section 10 therein. In those circumstances, finding

that the cause of action being one and the same, since the tenant is in

occupation of two different portions in the same premises, it was so

observed that seeking eviction by means of a common petition under

the said Act is proper.

16. One of the predominant circumstances considered by this court in

the above ruling was that the prejudice suffered by the tenant on

account of filing a single petition. It was not a case, where jurisdiction

of the court to entertain an application of such nature was in issue.

2009(2) ALT 424 MVR,J S.A.No.143 of 2020

17. Therefore, the above ruling cannot help the contention of the

respondents in this matter as rightly contended by Sri Sridhar, learned

counsel for the appellant.

18. The rent being paid for the shop room and the three small rooms

on the rear side in the demised premises is a determinative factor in

this case. At the commencement of the tenancy in respect of the shop

room, it is not in dispute that it was Rs.3000/- p.m. It is established by

Ex.B1 and Ex.B2 dated 02.05.1997 and 03.06.1997 respectively as well

as Ex.B3 dated 02.07.1997. In terms of Section 32(c) of A.P.Buildings

(Lease, Rent and Eviction) Control Act, 1960, when once the rent is to

such an extent, the Civil Court alone has jurisdiction to entertain a suit

for eviction of the tenant.

19. Therefore, the cause for eviction of the appellant from the shop

room in the demised premises, shall arise only upon issuance of a quit

notice under Section 106 of Transfer of Property Act and not otherwise.

Ex.A1 legal notice dated 06.03.2013 has terminated this tenancy issued

on behalf of the respondents under Section 106 of Transfer of Property

Act. There was a reply to it as seen from Ex.B4 dated 15.04.2013. Even

otherwise advisedly, the appellant did not take such a defence of

application of provisions of Rent Control Act in relation to the shop room

while confining such defence only to three small rooms on the rear side

of this premises, in his written statement.

20. Issuing a composite notice of this nature seeking eviction of the

tenant terminating a tenancy, cannot be held being invalid or illegal. It

is in consonance with Section 106 of Transfer of Property Act, as such.

MVR,J S.A.No.143 of 2020

21. In respect of three small rooms on the rear side since rent

admittedly remained at Rs.600/- per month since the year 2012

including on the date of institution of the suit, being a separate tenancy

as such, it is covered by the provisions of A.P.Buildings (Lease, Rent and

Eviction) Control Act, 1960, in view of effect of Section 32(c) therein.

Therefore, the objection of the respondents in respect of these shop

rooms to lay a suit by the respondents is justified and proper. The

tenancy in respect of these three rooms is not amenable for jurisdiction

of a civil court.

22. However, Sri S.Sridhar, learned counsel for the appellant

contended that the intention of the parties has to be considered in this

context if termination is proper or not. It is further contended by Sri

Sridhar, that both the courts below did not consider this aspect

particularly with reference to termination of tenancy and hence, the

matter be remanded to trial Court for fresh adjudication. On the other

hand, Sri M.V.Suresh, learned counsel for the respondents contended

that the tenancy of the shop room as well as three small rooms is

admitted, when the entire building has same door number, and when

the suit is based on a common cause of action, such tenancy cannot be

dissected, one to amenable to jurisdiction of civil court and another to

be within the purview of the rent court.

23. Reasons are already stated holding that filing a suit for eviction of

the appellant from the shop room is justified and whereas in respect of

the three small rooms, the civil court did not have jurisdiction. Though

strenuous contentions are advanced by Sri M.V.Suresh, learned counsel

relying on Manikya Sarma, referred to above, the fact situation is

different and considerations called for determination of the matter in MVR,J S.A.No.143 of 2020

the present case on hand and the one considered in Manikya Sarma are

distinct and different. The measure applied in the above ruling cannot

be the basis to decide this matter.

24. In the above context, Sri S.Sridhar, learned counsel for the

appellant also brought to the notice of this Court clear admissions of the

third respondent as P.W.1 in cross-examination. However, Sri

M.V.Suresh, learned counsel contends that these statements elicited in

cross-examination of P.W.1 need not be considered in view of the fact

that he was not the landlord when the appellant entered into tenancy in

the year 1997 and reiterating the stand of the respondents relating to

single cause of action, as well as alleged merger of the tenancies.

25. Nonetheless, having regard to nature of the dispute in this

matter, neither there is necessity to remand this matter to the trial

Court nor in the given facts and circumstances to confirm the judgments

and decrees of both the courts below in toto.

26. The entire case is a clear device of a clever drafting of the plaint

mixing up the tenancies camouflaging in such a manner to project

merger of tenancies. Effort in issuing Ex.A1 notice terminating tenancy

seems to be a designed attempt in that process. Both the Courts below

apparently did not consider this designed attempt on the part of the

landlords against the tenant and failed to appreciate this distinct

feature. Thus, appreciation of the material by both the courts below in

this context is improper and is highly irregular. The courts below also

failed to consider clear admissions of P.W.1 and thus these judgments

are outcome of misreading of the evidence on record to the extent of

considering the nature of tenancy for the shop room and the rooms on MVR,J S.A.No.143 of 2020

the rear side being separate. Therefore, interference is required to

that extent in this second appeal. However, in respect of the shop

room, the tenant has to suffer decree of eviction and to that extent, the

findings recorded by both the courts below should be confirmed being

consistent and concurrent.

27. In the result, this second appeal is allowed in part setting aside

direction of both the courts below, of eviction of the appellant from the

three small rooms on the rear side of the plaint schedule premises

bearing door number 7-2-30, Vullithota Veedhi, Rajamundry, and

whereas the eviction ordered by the trial Court as confirmed by the first

appellate Court in respect of the ground floor eastern side shop room in

the same premises is confirmed. The appellant is granted time up to

31.12.2021 to vacate the shop room. Whereas the suit in respect of

three small rooms in the said premises stands dismissed. The parties

shall bear their own costs in this second appeal. Interim orders if any,

stand vacated. All pending petitions, stand closed.

___________________ M. VENKATA RAMANA, J Dt: 28.09.2021 Rns MVR,J S.A.No.143 of 2020

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.143 OF 2020

Date:28.09.2021

Rns